The Supreme Court, during its ongoing hearing on the abrogation of Article 370, raised pertinent questions about the unique status of Jammu and Kashmir (J&K) within the Indian Union. The apex court questioned why neither the Union of India, the Legislative Assembly of Jammu and Kashmir, nor the political establishment in the rest of the country ever made efforts to bring the Constitution of Jammu and Kashmir “expressly” within the ambit of the Indian Constitution.
Thank you for reading this post, don't forget to subscribe!The court observed that over the years, the Jammu and Kashmir Constitution had limited the executive powers of the Union of India and restricted the legislative reach of the Parliament. It was highlighted that J&K was the only state to have a separate Constitution, which was enacted on January 26, 1957, and later abrogated by the President on August 5, 2019.
Chief Justice of India D.Y. Chandrachud, leading the Constitution Bench, posed a question to senior advocate Gopal Subramanium, representing a petitioner
“Post 1957, neither the government nor the legislative Assembly of Jammu and Kashmir nor for that matter the political establishment in the rest of the country thought of amending the Indian Constitution to bring the Jammu and Kashmir Constitution expressly within the fold of the Indian Constitution.”
During the fifth day of the hearing, the Supreme Court made an oral observation that Jammu and Kashmir’s surrender of sovereignty to India was absolute and unconditional. The bench emphasized that the restrictions placed on the Parliament’s law-making powers concerning J&K did not imply any dilution of India’s sovereignty.
Senior Advocate Zaffar Shah, representing the J&K High Court Bar Association, argued that at the time of accession, the erstwhile Maharaja of J&K had retained certain powers. These powers were embedded in Article 370. He further highlighted that after the adoption of the J&K Constitution, the state legislature was vested with powers over the subjects in the residuary entry, rather than the Parliament.
Responding to Shah’s arguments, CJI Chandrachud stated
“One thing is very clear that there was no conditional surrender of sovereignty of J&K with India. The surrender of sovereignty was absolutely complete.”
He further added that the 1972 order made it clear that sovereignty was vested exclusively in India.
Shah countered by emphasizing the unique constitutional provisions that required concurrence and wherein the President applied modifications post concurrence. He questioned if such provisions were applicable to other states as well.
The Chief Justice, elaborating on the essence of Article 1, which establishes India as a Union of States including J&K, remarked
“There are various shades of concurrence required in the Constitution. That doesn’t reflect on the sovereignty of the Union. These are fetters.”
The ongoing hearing in the Supreme Court seeks to address the complexities surrounding the abrogation of Article 370 and the unique constitutional status of Jammu and Kashmir
The ongoing hearing in the Supreme Court seeks to address the complexities surrounding the abrogation of Article 370 and the unique constitutional status of Jammu and Kashmir within the Indian Union.